Jackson's Actions: Betrayal of Trust

0 Comments | Insight on the News, July 30, 2001 | by Woody West

Many of those slightly to the right on the political spectrum are convinced that liberal judges are a threat to individual freedom and economic liberty. Those on the left express astonishment at this assertion (some of the reaction may even be genuine). And now, as the dialect comedians used to say, "Here come de judge" -- Thomas Penfield Jackson of the U.S. District Court in Washington.

Jackson is, of course, the colossus who ordered the dismantling of Microsoft Corp. after a long antitrust trial. As the judge was contemplating his demolition of one of the most innovative of the high-tech tribes, he was chastised by a unanimous U.S. Court of Appeals for the District of Columbia that reversed his order. While letting stand Jackson's ruling that some of Microsoft's competitive practices violated the Sherman Antitrust Act, the appellate ruling nevertheless was searing.

The ruling said Jackson "violated ... ethical precepts by talking about the case with reporters." He was rebuked for violations that were "deliberate, repeated, egregious and flagrant. He seriously tainted the proceedings ... and called into question the integrity of the judicial process." That wasn't a hammer blow but a 16-pound maul.

During the 76-day trial, Jackson hosted secret sessions with pressies from the Washington Post, the New York Times and the Wall Street Journal. He also granted 10 hours of interviews to Ken Auletta, who was writing a book on the trial. Apparently Judge Jackson didn't have enough interview time left to include in his blatherings the East Eden Gazette or the Elk's Breath Bugle.

During these surreptitious get-togethers, Jackson unburdened himself with vehemence. One does not need to love Microsoft or Bill Gates -- and evidently legions do not -- to be offended. The judge compared Microsoft executives to drug traffickers and gangland killers, the corporation to the original Standard 0il (note in passing that, for all his rascality, the genius of John D. Rockefeller rationalized a chaotic new industry and ensured that kerosene became cheap enough for use in even the poorest American homes). Jackson also harrumphed to his media cronies that the Microsoft founder had "a Napoleonic concept of himself." Sounds rather like the pot and the kettle, doesn't it?

This all took place as Jackson postured as a disinterested referee. The only way he more obviously could have prejudged the case was to have applauded the prosecutors during their presentation of evidence. Why would a judge sitting for 19 years on the federal bench risk his reputation and his ruling in the case? Why would he put personal prejudices about a defendant above his application of the law? There's the very definition of a liberal; never mind that Jackson was appointed by Ronald Reagan.

Auletta, whose book on the Microsoft lawsuit was published shortly after the trial, said when the appeals court swatted Jackson that the judge had told him he wanted to "share with the world" how a judge makes decisions and to "demystify the process." Say what?

In an age in which celebrity is a highly negotiable currency, Jackson's eagerness to share with all of us suggests an immense ego famished for public attention. Attention he certainly got: He was shown on television day after day striding toward his courtroom; in the interminable analyses after his decision, he was quoted nearly as often as one of professional basketball's newly drafted multimillionaires.

The other motivation Judge Jackson cited -- to demystify the way the law works -- also argues a swollen personal pride, with an ideological spin.

The vital dignity of the law resides in the premises of a constitutional state. That respect is granted when the majority of the populace agrees that the daily collisions of diverse interests are sorted out with reasonable equity -- that is, when the institution is the sum of its parts, which is a status that infuriates the left.

Radical egalitarians, of course, are outraged at institutions that are hierarchically organized, and many of them are profoundly opposed to capitalism. Their camp-followers in the academic world carry this further: The law is nothing more than the instrument by which the powerful repress the powerless.

Abetting both is the perverse status today of betrayal of trust. Acts consensually regarded as shameful in the past now confer celebrity. The greater the degradation, the greater is the attention paid to the transgressor. This routinely translates into hefty advances for a book or handsome speaking fees (e.g., Bill Clinton).

If Judge Jackson had an atom of shame, he already would have drafted his resignation statement, expressing a desire to spend more time with his family. He surely has been eyebrows-deep in what an old hymn calls the "earth's absorbing vanities."

But perhaps there's a simpler explanation. It could be that the third time the Windows operating system on the judge's computer crashed, he vowed eternal hostility against Microsoft, Bill Gates, the Gates family -- and their cat.